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TMI Blog2003 (9) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... cases, it has been ruled that execution of the undertaking under Rule 224(2A) by an assessee would prevail and duty at the enhanced rate would be payable by him. But contrary view is said to have been taken in :- (i) Union Carbide Ltd., Calcutta v. CCE, Madras [1983 (12) E.L.T. 549 CEGAT] (ii) Indian Explosives Ltd., Calcutta v. CCE, Kanpur [1985 (20) E.L.T. 139 (Tribunal)] (iii) CCE, Rajkot v. Devi Enterprises [1998 (97) E.L.T. 126 (Tribunal)] (iv) J.K. Synthetics Ltd. v. CCE [1993 (68) E.L.T. 246 (Tribunal)] which had been referred in the referral order itself. 4.It would be beneficial and convenient for expressing final opinion on the above referred issue, to refer in nutshell to the facts of the case, which almost remains undisputed. Those are :- The appellants who are engaged in the manufacture of excisable goods falling under Chapter 40 of Central Excise Tariff Act, 1985, cleared the goods on the eve of the budget day, after taking due permission of the Commissioner, by paying duty at the prevailing rate i.e.@ 24% BED 6% SED. They also gave undertaking in terms of Rule 224(2A) for paying differential duty, in the event of enhancement in the rates of duty in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , observed that the reference shall stand decided in favour of the appellants. However, on the following date i.e. 9-9-2003 the learned SDR moved miscellaneous application seeking re-hearing of the matter on the ground that by virtue of the amendment of Section 3 of the Central Excise Act made in 1999 budget, the special excise duty is being levied as per Clause (1)(b) of this Section at the rates detailed in Second Schedule to Central Excise Tariff Act and not as per annual Finance Bill every year. The levy of special duty under this Section 3 of the Act, is on the same footing as that of of basic excise duty and as such legal provisions such as Rule 9A and Rule 224(2A) were applicable. The learned Counsel for the appellants to whom the copy of this application was supplied, did not contest this contention of the Revenue and consented to the re-hearing of the matter. The Counsel did not dispute that on account of the amendment of Section 3 of the Central Excise Act. The ratio of law laid down in Collector of Central Excise, Patna v. Tata Iron Steel Co. Ltd. (supra) had no application to the present case. The matter was, therefore, ordered to be re-opened and re-heard. 8.That i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . may if it considers it necessary or expedient in the public interest so to do permit the removal of the goods. 11.From the conjoint reading of the above referred two Rules, it is evident that Rule 9A is a general rule, the object and scope of which is to determine the date for imposition of duty and tariff valuation. Such date, as per this rule, shall be the date of actual removal of goods from the factory or a warehouse. This rule comes into play when the goods are removed in normal routine by an assessee/manufacturer of the excisable goods. But this rule has got no application to the case, where the removal of the goods had been in terms of Rule 224, as Clause (2) of this Rule, opens with the words "notwithstanding anything contained in these rules". 12.The bare reading Rule 224 makes it clear that it had been enacted with a view to meet the exceptional situation, where the removal of the goods had been sought by an assessee/manufacturer from his factory or a warehouse, on the eve of the presentation of the annual/supplementary, Budget Introduction of Finance Bill or any Bill for the imposition or increase of any duty, on the goods. The assessee under Clause (2) of this rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notification enhancing the duty was issued on the date subsequent to their removal of the goods i.e. on 1-3-2000. The removal of the goods by them has to be related to that date (1-3-2000) on which they could only remove the goods from the factory, in view of the complete ban imposed, under Rule 224(2) on such removal. They cannot be permitted to wriggle out of their own undertaking to pay duty at the enhanced rate, made applicable to the goods removed by them, after the presentation of the budget. Their undertaking had been rightly enforced by the Department and recovery of the differential duty from them on account of enhancement of rate of duty cannot be in any manner held to be illegal/non-justifiable, under the law. 14.Manglam Cement Ltd. v. Collector of Central Excise, Jaipur [1999 (105) E.L.T. 463 (Tribunal)] was an identical case and the issue involved therein was similar to the one referred in the present case. In that case it had been ruled, that, "having availed the relaxation under Rule 224(2A) the assessee could not be allowed to turn back and say that he was not bound by the undertaking given by him in view of the provisional collection of the Taxes Act.'' This vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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